Andrew Quemere v. Swampscott, Town of - Town Clerk (SPR 20221591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2022 SPR22/1591 Jared H. LaLiberte Town Clerk Town of Swampscott 22 Monument Road Swampscott, MA 01907 Dear Mr. LaLiberte: I have received the petition of Andrew Quemere appealing the response of the Town of Swampscott (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 24, 2022, Mr. Quemere requested “[a]ll internal affairs records for [a named individual]” and “[t]he most-recent police ID card photo of the above-named individual[.]” On July 11, 2022, the Town responded. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR22/1591, was opened as a result. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Jared H. LaLiberte SPR22/1591 Page 2 July 25, 2022 Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Town’s July 11th response In its July 11, 2022 response, the Town gave a fee estimate of $100. The Town provided the following chart to explain the fee estimate: Title Hours Per Hour Cost Total Staff in the Town 2 hours (to coordinate $31.67 / hour reduced $50 Clerk’s Office the search for to $25.00 per hour, as responsive electronic required. and hard copy records) Police Department- 2 hours (to locate $49.69 / hour reduced $50 Captain electronic to $25.00 per hour, as information and hard required. copy records in the Police Department’s files) TOTAL 4 hrs $100 The Town noted that: [T]o the extent the internal affairs files contain the names and anonymity of any voluntary complainants, they will be redacted pursuant to exemption (a), (c), and (f) to the Public Records Law. Additionally, should any responsive records contain driver’s license numbers and social security numbers contained in police records or internal affairs files, they will also be redacted pursuant to Exemption (a), as the Police Department is required to confidential[ly] maintain individuals’ personally identifiable information as defined by G.L. c. 93H, the Massachusetts Data Breach Notification Law. Current appeal In his appeal, Mr. Quemere states that, “[t]he basis of the town’s fee is unclear. The town states that it must redact the names of witnesses. However, such redactions are discretionary and therefore cannot be the basis of a fee; municipalities can only charge for redactions that are mandated by law. The town also states that it might need to redact driver’s license numbers and social security numbers. It is not clear if the town must review all of the records in question or only a portion of them to locate this information.” Mr. Quemere asserts that Exemption (c) shall not apply to law enforcement

Jared H. LaLiberte SPR22/1591 Page 3 July 25, 2022 misconduct investigations. Mr. Quemere argues that: The cost breakdown provided by the town is unclear. The breakdown contains two entries, one for the town clerk and another for the police department. Both state that they are for two hours of personnel time and both state that they are to search for the records. The charges appear to be duplicative….All of the responsive records should be in the possession of the police department. Mr. Quemere also contends that “the breakdown does not state how many hours of personnel time will be dedicated to each task.” Further, he states that “[i]t is also not clear if the town is using the lowest paid employees to perform these tasks.” Although the Town has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take four hours, it is unclear how the Town requires this much time to produce responsive records. It is also not clear what tasks are involved to prepare responsive records for production. Further, it is unclear whether two departments within the Town need to search for responsive records. As such, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Town must confirm that the rate of $25.00 is that of the lowest paid employee capable of performing such work. Although the Town explained that it intends to redact documents, it is unclear whether the Town is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). I encourage Mr. Quemere and the Town to communicate further in order to facilitate producing records efficiently and affordably. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Jared H. LaLiberte SPR22/1591 Page 4 July 25, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere